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TMI Blog2007 (4) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners in Criminal Writ Petition Nos. 2767 of 2006, 27 of 2007 and 124 of 2007. We have also heard Mr. Subhash Zha, the learned counsel appearing for the petitioners in Criminal Writ Petition No. 343 of 2007. Senior Counsel Mr. Dwarkadas and Mr. D. Vitre and the learned counsel Mr. J.P. Shah have also made submissions. We have heard them on their request, though the petitions in which they are appearing have been disposed of by separate orders. 3. We have also heard Mr. Borulkar the learned Public Prosecutor who appears for the respondent-State. Mr. Toor, Ms. Rathina Maravarman and Mr. Punwani, who appear for the respondent-Banks or financial institu-tions in these writ petitions have also made submissions. We have also heard Mr. Collabawalla. 4. We may briefly refer to the facts averred in Criminal Writ Petition No. 2767 of 2006. Petitioner 1 is a proprietary concern of petitioner 2. Petitioner 3 is a guarantor for the debt of petitioners 1 and 2. 5. According to the petitioners, they were banking with respondent 1, the Indian Bank. Respondent 1 vide their sanction letter dated 24-1-2002 sanctioned open cash credit facility (stock and book debts) to the petitioners. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice under section 13(2). 11. Mr. Soni, the learned counsel for the petitioners first took us to section 14 of the NPA Act. Mr. Soni submitted that this section which speaks of the power of the Chief Metropolitan Magistrate/District Magistrate (for convenience, 'the CMM/DM') to assist the secured creditor in taking possession of secured asset begins with the words "where the possession of secured assets is required to be taken by the secured creditor...." Mr. Soni contended that it is implicit in this sentence that the CMM/DM has to apply his mind as to whether possession is required to be taken or not. 12. He then look us to rule 8(3) of the Security Interest (Enforcement) Rules, 2002 (for short, 'the said Rules') and contended that this rule speaks about what the authorised officer is supposed to do if possession of immovable property is actually taken. He submitted that therefore this provision contemplates a situation where the CMM/DM need not order taking possession. There could be cases whereafter due application of mind, it may appear to the CMM/DM that it is not necessary to take possession. 13. Mr. Soni submitted that while exercising jurisdiction under section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jections afresh and if the objections are rejected, communicate the rejection to the petitioner therein. Mr. Soni contended that therefore the importance of the reply or objections can hardly be underestimated. That is a minimum safeguard afforded to the debtor under this stringent statute. It's importance is emphasised by the Supreme Court in Mardia Chemicals Ltd.'s case (supra). Therefore, the CMM/DM must find out whether objection of the debtor is considered or not. 16. Mr. Soni then contended that section 14(3) states that no act of CMM/DM in pursuance of this section shall be called in question in any court or before any authority. Therefore, it is all the more necessary for the CMM/DM before exercising power under section 14 to apply his mind as to whether possession is required to be taken. He must find out whether the property is in fact mortgaged or not, if there is a tenant whether tenancy is lawful or not. His attention must be focussed on such and other related aspects. Such a drastic power cannot be exercised without application of mind. The borrower or the person in possession must be heard. Mr. Soni contended that section 14 is not in aid of section 13(4) it is a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naji Thamaji Patil v. Ragh Bhivraj Patil AIR 1973 (Bom.) 75. Mr. Soni contended that in most of the cases the borrower creates a simple mortgage. A simple mortgage consists of a personal obligation express or implied to pay and the transfer of a right to cause the property to be sold. The right transferred to the mortgagee is not ownership right. The ownership and possession of the property continues with the mortgagor. Mr. Soni submitted that therefore, in case of simple mortgage, the mortgagor can even transfer possession. All that the mortgagee is entitled to is an obligation to pay. He can cause the property to be sold and recover his money. But he cannot take possession because the ownership rights are not transferred. Mr. Soni submitted that if in case of simple mortgage, this is allowed to be done it will mean changing or improving the contract. It will be against the provisions of the Transfer of Property Act. 21. Mr. Soni also relied on the judgment of the Supreme Court in Dev Rai Dogra v. Gyan Chand Jain [1981] 2 SCC 675: AIR 1981 SC 981. Referring to rules 95 and 96 of Order XXI of the Code of Civil Procedure (for short 'the C.P.C.') he submitted that if tenants are in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters to be decided by it, normally, such a decision cannot be said on matters to be decided by it, normally, such a decision cannot be said to be a purely administrative decision. It is really a decision on its own jurisdiction for the exercise of the power conferred by the statute or to perform the duties imposed by the statute. The Supreme Court further observed that unless the authority satisfies itself that the conditions for exercise of its power exist, it could not accede to a request made to it for the exercise of the conferred power. The Supreme Court then observed that while exercising the power or performing the duty under section 11(6) of the Arbitration Act, the Chief Justice has to consider as to whether the conditions laid down by the section for the exercise of that power or for the performance of that duty exist and, therefore, while functioning under section 11(6) of the Arbitration Act, the Chief Justice or the person or institution designated by him is bound to decide whether he has jurisdiction whether there is an arbitration agreement, whether the applicant before him is a party, whether the conditions for exercise of the power have been fulfilled and if an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) begins with the words in the event of possession of immovable property is actually taken by the authorised officer. He submitted that the words 'physical possession' are absent in the NPA Act or the said Rules and rule 8(3) contemplates a situation where possession of immovable property may not be taken. He pointed out that under rule 8(6)(a), the notice which the authorised officer has to serve on the borrower must include the description of the immovable property to be sold including the details of the encumbrances known to the secured creditor. Rule 9(7) speaks of a case where the immovable property is sold subject to any encumbrances. In such cases, the authorised officer may if he thinks fit allow the purchaser to deposit within him the money required to discharge the encumbrances. Under sub-rule (8) on such deposit for discharge of encumbrances, the authorised officer may issue notice to the person entitled to the money deposited and take steps to make the payment accordingly and under sub-rule (9), the authorised officer shall deliver the property to the purchaser free from encumbrances. Therefore, the person in occupation of secured asset as a tenant who has caused the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be delivered or restored to the borrower. It does not speak about restoration of possession to a third party and therefore section 17 does not provide an alternative or efficacious remedy for a third party. 29. Mr. Dwarkadas submitted that that remedy under section 17 is not available to persons other than borrowers is clear from section 19. Section 19 states that if DRT on application made under section 17 or the Appellate Tribunal on an appeal preferred under section 18 holds that the possession of secured assets by the secured creditor is not in accordance with the provisions of the NPA Act, it can direct the secured creditor to return such secured assets to the concerned borrower and the concerned borrower shall be entitled to payment of compensation. Therefore, there is no relief provided to a third party. 30. Mr. Dwarkadas contended that in Transcore v. Union of India [2007] 73 SCL 11 , the Supreme Court has in paragraph 54 clearly stated that section 13(4) of the NPA Act proceeds on the basis that the borrower, who is under disability, has failed to discharge his liability within the period prescribed under section 13(2), which enables the secured creditor to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the aid of such a person. Mr. D'Vitre submitted that in such cases, writ petition is the only available and efficacious remedy and this Court should not hesitate to give relief to such a person. 33. Mr. Zha, the learned counsel appearing for the petitioners in Criminal Writ Petition No. 343 of 2007 adopted the arguments of Mr. Soni. He reiterated that though section 14 of the NPA Act does not provide for a notice to borrower or third parties, notice to them must be read into that section to secure ends of justice. He relied on the judgment of the Supreme Court in Mangilal v. State of Madhya Pradesh [2004] 2 SCC 447 : AIR 2004 SC 1280. In that case, the Supreme Court was inter alia, considering whether while fixing the quantum of compensation, the accused should be heard. It was argued before the Supreme Court that section 357 of the Criminal Procedure Code (for short, 'the Code') nowhere postulates grant of an opportunity to be heard. The Supreme Court observed that even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to heard the parties, whose rights and interests are likely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court was considering dismissal of an employee of the Indian Oil Corporation without notice or inquiry. Mr. Borulkar pointed out that the Supreme Court has held in this case that the principles of natural justice are not rigid or immutable and, hence they cannot be imprisoned in a strait jacket. Mr. Borulkar relying on this judgment contended that the object and the scheme of the NPA Act will have to be taken into consideration while deciding whether principles of natural justice are implied by excluded. In this case, the exclusion is in consonance with the object of the NPA Act, submitted Mr. Borulkar. 35. Mr. Borulkar then contended that considering the proximity of the high officers mentioned in section 14 to authorities which provide force, the Legislature asked them to exercise this ministerial power. Mr. Borulkar, submitted that section 14(4) grants immunity to the actions of the CMM/DM. His action of making available police force to take possession cannot be questioned in Court. This provision according to Mr. Borulkar is akin to such provisions found in the Bombay Police, the Customs Act and such other statutes. It does not give finality to the actions but gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced on this judgment is misplaced. 41. Mr. Toor, the learned counsel for the respondent-bank in Criminal Writ Petition No. 124 of 2007 contended that the NPA Act aims at protecting the secured creditor. The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'the DRT Act') did not provide any protection against languishing of securities of secured creditors. Therefore, under the NPA Act, the moment loan is granted, interest of the bank is created in the asset. The asset vests in the bank the moment loan is granted. Interest of the bank becomes absolute once there is a default committed by the borrower. Thereafter, opportunity is sought to be given to the borrower by issuing notice under section 13(2) to repay the loan. If the borrower does not repay, the secured creditor can take any of the measures set out in section 13(4). The learned counsel contended that there is no adjudication provided in the NPA Act up to section 17. Adjudication starts only when appeal under section 17 is filed. In that the DRT considers whether interest was created, whether it became absolute or not, whether it became non-performing as per guidelines of Reserve Bank of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions. Therefore, this Act overrides the provisions of the Transfer of Property Act or any other laws. 48. Mr. Toor pointed out that section 38 gives power to the Central Government to make rules. There is no provision enabling the Central Government to make rules in respect of section 14 that is because the CMM/DM exercises ministerial power. 49. Mr. Toor then submitted that in Mardia Chemicals Ltd.'s case (supra), the Supreme Court has upheld the validity of the NPA Act. Section 14 is upheld after examining the NPA Act on the touchstone of article 14. Principles of natural justice are part and parcel of article 14. Hence, there can be no question of giving notice under section 14. That aspect cannot be examined now. 50. Mr. Toor contended that the provisions of the NPA Act have to be interpreted keeping in mind its background and when there is conflict between law and equity, it is the law which has to prevail. He further submitted that when a provision is unambiguous like section 14, literal construction must prevail. In this connection he relied on Raghunath Bareja v. Punjab National Bank 2006 AIR SCW 6446. 51. Mr. Toor submitted that when alternative and efficacious reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd used for the seller to pay the market fee to the Committee is 'shall'. The Supreme Court observed that the employment of the said two monosyllables is of great jurisprudential import in the same clause dealing with two rights regarding the same burden must have two different imports. The Supreme Court observed that the legislative intendment can easily be discerned from the frame of the sub-clause that what is conferred on the seller is only an option to collect market fee from his purchaser but the seller has no such option and it is imperative for him to remit the fee to the Committee. In other words, the market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realised it from the purchaser or not. Mr. Colabawalla contended that applying this principle to sub-section (i) of section 14 while the secured creditor has an option to make a request to the CMM/DM, the CMM/DM, shall on such request being made to him, take possession of the asset and for securing compli-ance he may cause force to be used. It is imperative for the CMM/DM to secure compliance. He has no discretion. 57. Mr. Colabawalla further contended that the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 19 of the NPA Act. The learned counsel urged that when efficacious and alternative remedy is available, a writ petition should not be entertained. The learned counsel relied on the judgment of the Supreme Court in T.C. Basappa v.T. Nagappa AIR 1954 1954 SC 440. She submitted that it is wrong to say that appeals filed by third parties are not entertained or that third parties do not get any relief under section 17 of the NPA Act. The learned counsel drew our attention to judgments of the DRT where such appeals are entertained and in some cases relief is also given. 60. Mr. Punwani, the learned counsel appearing for respondent 2 in writ petition No. 343 of 2007 adopted the arguments of the learned counsel appearing for the petitioners. He submitted that the writ jurisdiction of this Court should be used sparingly and should not be exercised in matters arising out of the NPA Act. He relied on the judgment of the Rajasthan High Court in Aayush Par Overseas v. Chief Manager UCO Bank 2006(2) Bomkers Journal 896 :AIR 2006 NOC 1281 and the judgment of the Allahabad High Court in Vipin Kumar Gupta v. Branch Manager, Union Bank of India [2006] 131 Comp. Cas. 498 (All.). 61. Mr. Vishal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-performing assets by empowering banks to liquidate the assets and secured interest. (b)The NPA Act deals with crystallized liabilities. (c)The NPA Act proceeds on the basis that the asset is created in favour of bank which could be assigned to the assets management company which steps into the shoes of the secured creditors. (d)Section 13(2) proceeds on the basis that the borrower is under a liability and his account in the books of account of the bank is classified as sub-standard or doubtful or loss. The NPA Act comes into force only if these two conditions are satisfied. (e)Since section 13(2) deals with liquidation of liability on the basis that the account of the borrower has become non-performing, there is no scope of any dispute regarding liability. (f)The NPA Act does not deal with disputes between the secured creditors and the borrowers but it deals with the rights of the secured creditors inter se. (g)Section 13(1) and section 13(2) of the NPA Act proceed on the basis that the security interest in the bank and financial institution needs to be enforced expeditiously without the intervention of the Court and that enforcement could take place by non-adjudicatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised officer's powers are greater as security interest is already created in the bank. Hence, under rule 8 he can take steps to preserve the secured asset till issuance of the sale certificate under rule 9. Rule 9(6) states that on confirmation of sale, if the terms of payment are complied with, the authorised officer shall issue a sale certificate in favour of the purchaser. Rule 9(9) states that the authorised officer shall deliver the property to the buyer free from all encumbrances known to the secured creditor or not known to the secured creditor. This scheme of the NPA Act therefore does not disclose any dichotomy between symbolic possession and physical possession. (p)Since scheme of section 13(4) read with section 17(3) shows that if the borrower is dispossessed not in accordance with the provisions of the NPA Act, the DRT is entitled to restore status quo ante, it cannot be said that if possession is taken before confirmation of sale, the rights of the borrower to get the dispute adjudicated upon is defeated by the authorised officer taking possession. (q)The disputes which are sought to be avoided by rule 8 read with Rule 9 of the said Rules are those where third p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and therefore taking over such possession is illegal; must also fail in view of the gist of the observations of the Supreme Court quoted by us in sub-clauses ( n), (o ) and (p) of paragraph 62. 67. When the bank takes any measures under section 13(4), on account of failure of the borrower to repay the liability is already crystallized. Similarly when the secured creditor approaches the CMM/DM for assistance to take possession of the secured asset, the liability having been crystallized, there can be no adjudication about it at that stage. Possession has to be taken by non-adjudicatory process. There is no question of pointing out to the CMM/DM at that stage that the person who is to be dispossessed is a tenant, or that he has a prior registered sale deed or that in case of simple mortgage, ownership rights are not transferred, that the mortgagee is only entitled to an obligation to pay and, hence, possession cannot be taken or that such a course will improve or change the contract etc. Grievance that reasons for not accepting the objections were not communicated can also not be raised at that stage because consideration of reply is in the realm of adjudication which cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedural irregularities about measures taken under section 13(4) must also be rejected. In this connection, we may also refer to the judgment of the Supreme Court in Allahabad Bank's case (supra). In that case, the Supreme Court has after referring to its earlier judgment reiterated that the DRT can travel beyond the CPC and the only fetter that is put on its powers is to observe the principles of natural justice. The Supreme Court has further observed that the DRT can pass orders to secure the ends of justice. In view of these observations, it is not possible for us to restrict the width and amplitude of the DRT's powers. 70. It is also not possible for us to hold that remedy provided under section 17 is not available to a third party. This section begins with the words 'Any person (including borrower) aggrieved by any of the measures referred to in sub-section (4) of section 13'. In our opinion the words 'Any person (including borrower)'; cover third parties also. Under section 13(3A), the secured creditor is required to communicate to the borrower reasons for not accepting his objection to the notice under section 13(2) but the reasons so communicated does not confer any right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e must be followed. It is argued that even while exercising administrative powers, principles of natural justice must be followed and where a statute is silent in the interest of justice notice must be read into it. Several judgments of the Supreme Court have been cited before us in support of these submissions. Heavy reliance is placed on the judgment of Supreme Court in Maneka Gandhi's case (supra). None can dispute these well-settled principles. 74. However, we cannot ignore the object of the NPA Act. We have already quoted the reasons for the enactment of the NPA Act. It is a stringent statute. It proceeds on the basis that liability of the borrower is crystallized. It seeks to take care of menace of mounting non-performing assets which if not checked would cripple the national economy by blocking public money. It seeks to set up assets reconstruction companies and empower them to take possession of secured assets. It provides for assignment of debts to securitisation companies which the DRT Act did not provide. The secured assets are sought to be liquidated in time. The basis of the NPA Act is crystallised liability and enforcement of security interest without the interventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is filed under section 17. As observed by the Supreme Court in Transcore's case (supra) section 6 of the NPA Act inter alia states that the bank or financial institution may, if it considers appropriate give a notice of acquisition of financial assets by any securitisation company or reconstruction company to the borrower and to any other concerned person but they may or may not give notice to the borrower regarding acquisition of financial assets the reason being that assets are transferable overnight. Section 13(2) contemplates a notice to the borrower calling upon him to discharge his liabilities. Section 13(3A) requires the secured creditor to communicate to the borrower reasons for not accepting his representation or objection and proviso thereto states that such communication shall not confer right on the borrower to make an application under section 17 at that stage. Section 14 with which we are concerned here does not contemplate any notice to the borrower or a third party. It is only section 17 which states that any person including borrower can make an application to DRT being aggrieved by any measure taken under section 13(4). Explanation to section 17 clarifies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and (3). It reads thus : "14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. (1) ** ** ** (2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken steps and use, or cause to be used, such force as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority." 82. Sub-section (3) is preceded by sub-section (2) under which for securing compliance of sub-section (1), that is for taking possession, the CMM/DM can take such steps and use or cause to be used, such force, as may in his opinion, be necessary. Sub-section (3) grants immunity to the CMM/DM as regards steps taken by him or force allowed to be used by him for providing assistance for taking possession. Since as stated by us adjudication of rival claims is absent at that stage, there is no question of his dealing with rival claims and giving a reasoned judgment as regards the merits of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emplates power to adjudicate. The Supreme Court has clarified that adjudication is involved in the constitution of the Arbitral Tribunal and therefore, the Chief Justice has to inquire whether the conditions for exercise of his power under section 11(6) of the Arbitration Act exist and only on being satisfied in that behalf, could he appoint an arbitrator or an Arbitral Tribunal on the basis of the request. So far as the NPA Act is concerned, adjudication is clearly excluded by the Supreme Court in Mardia Chemicals Ltd.'s case (supra) and in Transcore's case (supra). In our opinion, therefore, the petitioners cannot draw any support from the judgment in SBP & Co.'s case (supra). 85. In our opinion, at the time of passing order under section 14 of the NPA Act, the CMM/DM will have to consider only two aspects. He must find out whether the secured asset falls within his territorial jurisdiction and whether notice under section 13(2) of NPA Act is given or not. No adjudication of any kind is contemplated at that stage. 86. It was argued that inasmuch as an alternative and efficacious remedy of an application under section 17 of the NPA Act is provided, a writ petition pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertain such a writ petition, protect the secured asset by appropriate conditions and relegate that person to DRT. Similarly if the High Court finds that the action taken by the bank or financial institution on the face of it cannot be sustained because it is hit by section 31 of the NPA Act. the High Court may entertain a writ petition. As done by the Nagpur Bench of this Court in M.R. Gawai Enterprises' case (supra) a writ petition may have to be entertained if reasons for not accepting objections of the borrower to notice under section 13(2) are not communicated to the borrower. It will depend on the facts and circumstances of each case. Such cases would be exceptional and few and far between. 89. In this connection, we may refer to the judgment of the Supreme Court in L. Chandra Kumar's case (supra). In that case, the Supreme Court has held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdiction is also part of the basic structure of the Constitution. However, in our opinion, ordinarily such petitions should not be entertained. Lot of care and circumspection must be exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 17 of the NPA Act before the DRT by passing an interim order which will protect the secured assets. Adjudication and final order should be left to the DRT as far as possible. 91. Having dealt with the main issue, we will now deal with the individual writ petitions. 92. We have already narrated facts of Criminal Writ Petition No. 2767 of 2006. It was argued that since respondent 1 has not replied to the objections raised by the petitioners, in the light of the judgment of the Nagpur Bench in M. R. Gawai Enterprises' case (supra) this Court should set aside the action initiated by respondent 1. Since this is not an admitted fact we are unable to do so. We are unable to go into disputed questions of fact. Admittedly, symbolic possession is taken by respondent 1- Indian Bank on 16-11-2005. It the petitioners are so advised, they may file an application before the DRT within a period of four weeks from today where all questions including the question regarding reply can be raised. We continue the interim relief granted by us for four weeks from today. For further continuation of the interim relief, the petitioners will have to approach the DRT. The DRT shall deal with the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners 1 and 2. The petitioners were banking with respondent 1 bank. Respondent 1 had sanctioned cash credit facility of Rs. 19 lakhs, STPL facility of Rs. 35 lakhs, WCTL facility of Rs. 15.50 lakhs and Rs. 13 lakhs to the petitioners. Respondent 1 also sanctioned facility of bank guarantee of Rs. 10 lakhs STC facility of Rs. 5 lakhs. 99. It appears to be the case of respondent 1 that the petitioners have created an equitable mortgage in favour of respondent 1 and Bungalow No. 17, Basant Garden Co-operative Housing Society Limited, Next to Atur Park, V.N. Purav Road, Chembur, Mumbai and Unit No. 108, 1st Floor, Hiranandani Industrial Estate Onkar Premises Co-operative Society Ltd. Opp. Kanjurmarg Railway Station, Kanjur Marg, Mumbai (for convenience, "the secured assets") have been mortgaged to respondent 1. Since the petitioners defaulted in repayment of the loan, respondent 1 issued notice dated 16-2-2005 under section 13(2) of the NPA Act calling upon the petitioners to pay an amount of Rs. 80,28,271.14 which according to respondent 1 is due from the petitioners. 100. The petitioners sent a reply dated 24-2-2005 denying their liability. It appears that the objection rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 19,00.000 petitioner 1 was granted loan of Rs. 5,00,000 by respondent 2, LIC Housing Finance Limited. Thus, in respect of the said flat, total loan of Rs. 24,00,000 was granted to the petitioners by respondent 2. 104. It appears that the petitioners have created equitable mortgage in favour of respondent 2 by depositing relevant documents of the said flat with respondent 2. The petitioners failed to repay the loan. Hence, respondent 2 issued a notice under section 13(2) of the NPA Act calling upon the petitioners to pay a sum of Rs. 19,55,544.78 together with further interest thereon from 31-8-2005. 105. It appears that respondent 2 made an application/request to the CMM, Mumbai under section 14 of the NPA Act requesting for assistance to take possession of the said flat which is a secured asset. On 12-12-2006, the learned CMM granted the said application. The petitioners have challenged the said order in this petition. Admittedly symbolic possession of the said flat has been taken by respondent 2. In the circumstances, we direct that if the petitioners file any application under section 17 of the NPA Act to the DRT challenging the action taken by respondent 2, the DRT shall d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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